Judges seem set to restrict affirmative action in college admissions

“When does this end? When is your sunset? Judge Amy Coney Barrett asked North Carolina Solicitor General Ryan Park, who is defending UNC. « grutter don’t say, ‘That’s great, we accept that.’ grutter says it’s dangerous and there has to be an end point.

Arguments in the case against Harvard have focused on whether race-neutral alternatives are sufficient and allegations that the Ivy League institution intentionally discriminates against Asian American students with the “personal grade” used in its holistic admissions process. Conservative justices also questioned admissions benefits for legacy applicants and wealthy prospective students.

The court’s 6-3 conservative majority made clear its alignment with the SFFA, while the court’s liberal justices defended decades of precedent that allowed colleges to use race as a single factor in admissions.

While the SFFA in both cases argues that the use of race in admissions violates the Equal Protection Clause, education and civil rights groups worry that ending the practice could exacerbate inequalities for coming years.

« A blanket ban on race-conscious admissions would cause a drop in racial diversity at many of our country’s major educational institutions, » US Solicitor General Elizabeth Prelogar told the court. “Racially neutral alternatives currently cannot tell the difference…and because the university is the training ground for future American leaders, the negative consequences would ripple through nearly every significant institution in America.”


Arguments in SFFA’s case against UNC began with an interrogation of Judge Clarence Thomas, who raised a UNC argument that institutions could not consider « the whole person in the process of ‘admission’ regardless of race.

Judge Sonia Sotomayor, a known supporter of affirmative action, soon after launched into the defense of the use of race in admissions with pointed questions to the SFFA lawyer. She pointed to the correlation between race and student experiences.

« If you’re black, you’re more likely to be in an underfunded school, » Sotomayor told Partick Strawbridge, who argued on behalf of the SFFA in the case against UNC. “You are more likely to be taught by teachers who are not as qualified as others. You are more likely to be considered less academic than to have less academic potential.

« Why do you want the admissions officer to say, ‘I’m not going to look at the race of the child to see if he had all of these socio-economic barriers present?' »

Judge Ketanji Brown Jackson joined Sotomayor, urging Strawbridge to prove how race has harmed SFFA students.

« When you give away your run, you don’t get any special points…No one automatically enters because the run is used, » Jackson said.

« You didn’t demonstrate or show a situation where all they looked at was race, » she added.

Conservative justices, however, relied heavily on O’Connor’s assertion in 2003 in grutter that the court felt it would not be necessary to consider race in admissions.

With O’Connor’s end goal just six years old, Chief Justice John Roberts, Barrett, and Justices Samuel Alito and Brett Kavanaugh pressed lawyers arguing on behalf of maintaining grutter for a delay. They also wanted to know how institutions will know when they no longer have to use race in admissions to achieve diversity on campus.

« How do you know you’re done? » Barrett asked Park.

And later, Roberts pressed Prelogar.

« Grutter gave us a number, » Roberts said. « Would you like to give us a number? » »

To which Prelogar replied, « I can’t give you a specific number, Mr. CJ, but I can say that I think our company has made progress towards that goal. »


Jackson recused herself from the Harvard case, making room for Judge Elena Kagan to play a bigger role in Harvard’s case for the liberal flank of the bench. She pressed Cameron Norris, who represented the SFFA, about whether race-neutral alternatives were limited in their ability to achieve diversity.

“Look, everyone prefers to achieve all of our racial diversity goals through racially neutral means,” Kagan said. « And that’s certainly what our cases say you have to do. » The question is, if the means of race neutrality don’t get you there, are you prevented from considering race? »

The conservative justices again referred to O’Connor’s 25-year timeline.

« But we’re not 25 yet, are we? » said Barret. « So if he has his own self-destruct mechanism where he says, ‘Hey, grutter says we have to stop because they just don’t work, do we have to give more time? »

Norris replied that Harvard had not indicated that it would stop using the breed. « I think 20 years is enough to call it, » he said.

Thomas and Judge Neil Gorsuch questioned Harvard lawyer Seth Waxman, a former solicitor general, about the university’s admission of wealthy students and its preference for athletes and children of alumni.

And Alito pushed Waxman to explain why Asian American applicants receive lower « personal rating » scores in Harvard’s admissions process.

« The record shows that Asian student applicants have the lowest personal scores of any other group, » Alito said. “What counts for that? It has to be one of two things. They must truly lack integrity, courage, kindness, and empathy to the same degree as students of other races or there must be something wrong with that personal score.

Waxman replied that the scores were based on recommendations from teachers and guidance counselors. He also relied on the lower court’s finding that there was no credible evidence to support discrimination against Asian American applicants in the personal assessment.

« Put aside recommendations from teachers or guidance counselors…I still haven’t heard an explanation for the disparity in personal grades given to Asians, » Alito said. “They rank below whites, they rank well below Hispanics and really well below African Americans. You are talking about hundreds of candidates, maybe thousands. What is the explanation for this?


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